R v VR, E - [2006] SADC 113

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VR, E
[2006] SADC 113
Ruling of Her Honour Judge Shaw
27 September 2006
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
R v Szejnoga (1998) 199 LSJS 97; R v Sakail [1993] 1 Qd R 312; R v Freeman [1980] VR 1; R v Mustafa (2005) 91 SASR 62; R v Saragozza [1984] VR 187; R v Braye-Jones [1966] Qd R 295; Daniels v The Queen (1989) 1 WAR 435 ; Eastough v R [1998] WA SCCA 154/155; R v Robertson exp A-G [1991] 1 Qd R 262; R v Lazos (1992) 78 A Crim R 388; Ugle v The Queen (1989) 167 CLR 647; Sparks v The Queen [1964] AC 964; Jones v The Queen (1991) 71 ALJR 538; R v Wilson, Tchorz and Young [1986] 42 SASR 203; Reppas v The Queen (1998) 20 WAR 178; Blayney and Blayney (2003) 87 SASR 354; Lapthorne v The Queen [1990] WAR 207; The Queen v Corkin (1989) 50 SASR 580; R v GG (2004) 151 A Crim R 92, considered.

R v VR, E
[2006] SADC 113

During the course of argument, I delivered a brief ruling in relation to the admission of evidence of complaint and distress. I now publish detailed reasons for my ruling.
The accused is charged with a number of sexual offences committed on unspecified dates between the 1^st day of January 2002 and the 18^th December 2003, all of which allegedly occurred in circumstances where the complainant, his wife at the time, was unaware of a sexual act occurring. On the prosecution case, the complainant first became aware of the alleged sexual acts having occurred, on the 18^th day of December 2003 when she discovered numerous photographs of the sexual acts on the computer at their home. The photographs included photographs of the complainant dressed in nightclothes, partially undressed and naked. In addition there were photographs which the prosecution contend depict sexual acts without consent which are the subject of the charges before the court.
At the commencement of the pre-trial argument, the particulars in relation to each count on the Information, were amended to identify the particular photograph or photographs which were the subject of each count. The prosecution case is that the photographs show the complainant in an unconscious state at the time of the sexual acts depicted in the photographs in question. There is no evidence as to the time when the alleged offences may have taken place in relation to the time when the complainant discovered the photographs. The prosecution case depends substantially upon the inferences to be drawn from the photographs. The prosecution case is that the photographs show that the complainant was not consenting.
The defence objects to evidence being led from the complainant as to what she says she told others after locating photographic images of herself on a computer in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v VR, E

Details

AGLC: R v VR, E [2006] SADC 113
Case: [2006] SADC 113
Decision Date: 27 September 2006

CaseChat Overview and Summary

The respondents, VR and E, appealed against their convictions for sexual offences. The case was heard in the Supreme Court of South Australia. The primary issue before the court was the admissibility of details and the fact of a complaint of sexual assault made by the complainant to a third party, which was then reported to the police. The court had to determine whether the evidence of the complaint was relevant and admissible, and if it could be used to corroborate the complainant’s testimony.

The court considered the principles established in prior cases such as R v Szejnoga and R v Sakail, which indicate that evidence of a complaint of sexual assault to a third party can be admissible if it is relevant to the issues in the case and can corroborate the complainant's evidence. The court also examined the requirements set out in R v Freeman and R v Mustafa regarding the admissibility of such evidence, which include ensuring that the evidence is not prejudicial and that its probative value outweighs any prejudicial effect. The court balanced these principles against the need to protect the complainant's privacy and prevent the misuse of such evidence.

In reaching its decision, the court found that the evidence of the complaint was relevant and could corroborate the complainant's testimony. The court concluded that the probative value of the evidence outweighed any prejudicial effect, and thus it was admissible. The court acknowledged the sensitivity of such evidence but emphasised the importance of allowing it where it can assist in establishing the truth. The appeal was dismissed, and the convictions were upheld.

The court did not make any specific orders beyond dismissing the appeal and upholding the convictions.

Orders